State supreme court hears arguments in case to decide future of absentee return methods
WILL President Rick Esenberg argues in front of the Supreme Court about the use of drop boxes. (Screenshot | WisEye)
Martha Chambers has been paralyzed from the neck down for the last 27 years after a horseback riding accident, and on Wednesday, the future of her ability to vote was up for debate in front of Wisconsin’s Supreme Court.
The court heard oral arguments Wednesday morning in a lawsuit brought by a group of Waukesha County voters — represented by right-wing law firm, the Wisconsin Institute for Law & Liberty (WILL) — seeking to end the use of absentee ballot drop boxes and the practice of others returning someone else’s ballot for them.
For years, the Wisconsin Elections Commission (WEC) has stated in guidance to the municipal clerks who run the state’s elections that drop boxes are an adequate method for returning absentee ballots and a voter’s agent may return a ballot for the voter. In January, a Waukesha County Circuit Court judge ruled that both practices aren’t allowable.
An appeals court stayed that order and allowed both practices to remain in use for the February primary election but not for last week’s Spring election. The Supreme Court is deciding if the order will guide state election law moving forward.
Since the 2020 presidential election and the right-wing conspiracies of a stolen election, both methods have come under attack from Republicans who allege they’re vulnerable to fraud. Republicans say drop boxes aren’t secure and describe the practice of returning someone else’s ballot in ominous terms using words such as “ballot harvesting” or “ballot trafficking.”
Chambers and advocates for people with disabilities say that if the Waukesha order is allowed to hold, people will be disenfranchised.
“This voting is a right for me,” Chambers said in a press conference following the arguments. “This ban or barrier would make it impossible for me to vote because I physically cannot put my ballot in a mailbox. I cannot hand it to a mail carrier. I don’t have the option of opening up my door to my home and driving my chair to the post office. It is just impossible. And that’s not just true of me. It is true for many people with disabilities, for older adults in the community in nursing homes and their homes.”
In the oral arguments WILL president Rick Esenberg cast doubt on whether people like Chambers exist in Wisconsin.
“If, in fact, there were persons who were unable to mail the ballot or deliver the ballot in person, that might make it impossible for them to vote and that might create some legal problem down the line,” Esenberg said. “Those individuals, perhaps they would have a claim to voting rights, perhaps they would have a constitutional claim. I would say that on this record, however, we have no indication that such a person exists, because we have affidavits here in which individuals have indicated that what they need is essentially somebody to pick up their ballot from them.”
Esenberg said that people like Chambers — who said in the press conference that despite the Waukesha order someone picked up her April ballot and put it in the mail for her — could simply request that their postal carrier come pick the ballot up for them.
Barbara Beckert, director of the Milwaukee office of Disability Rights Wisconsin, said in the press conference that Esenberg’s assertion was offensive. She added that the postal service can and does deny people’s requests for accommodations.
“Some participants in this litigation seemed skeptical that there are people in our state who are disenfranchised by the ban on absentee ballot return assistance,” Beckert said. “They suggest that every voter is able to mail their own ballot, place it in the mailbox or return it to their clerk if they try hard enough. That is offensive, and it is false. There are many people who because of disability or health conditions cannot place their own ballot in their mailbox. They may be unable to move their arm due to [multiple sclerosis], muscular dystrophy, spinal cord injury or other health conditions. They may not have arms, but they do have the constitutional right to vote and it is protected by federal civil rights laws that were enacted to combat such forms of discrimination and protect the fundamental right to vote for all Americans.”
During the arguments, the court’s three liberal-leaning justices, Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky, said Esenberg’s preferred rules for returning absentee ballots are absurd.
“I do see some absurdity in the position taken that I can’t have my husband walk to the end of the driveway and put it in the mailbox,” Bradley said.
Wisconsin Department of Justice attorney Steven Kilpatrick, who argued the case on behalf of the WEC, said that the state’s election law gives an enormous amount of discretion to local clerks, including whether or not they want to use drop boxes.
“There are a wide variety of clerks in this state, some in cities, some in rural places, and they may not have an office, a municipal office, some may be at home, office hours may be different,” Kilpatrick said. “So it shows that there is just discretion to the clerks on how they think to best administer the election.
“So therefore, there’s giving discretion to the municipal clerk to set up these secure drop boxes as a way for absentee voters to return their ballots,” he continued.
In other parts of the argument, Justice Brian Hagedorn, the crucial swing vote, attempted to get Esenberg to nail down just where the line should be drawn on where, when and how a ballot can be returned.
“What if there was, in front of the clerk’s office where I vote during the spring elections, there was a drop box outside at the Municipal Building, and what if a clerk’s staff was standing next to that drop box and walked up and said, ‘Yes, you can put your ballot right in here.’ Is that acceptable?” Hagedorn said. “It’s at the same physical location where the clerk’s office is, it’s not inside the physical office, but it’s at the building. It’s outside the building. And these are real questions, right? These are real questions that need to be answered. So I think it’s really important that we define this carefully and not generically. So is that okay?”
Esenberg said that it’s possible Hagedorn’s hypothetical would be allowed, but that it’s difficult to know where exactly the rules should fall.
“Line drawing is always difficult,” Esenberg said.
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